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UO action in student verbal tiff contested

A shout of “I hit it first” shouldn’t be in violation of campus policies, a free speech group says

By Saul Hubbard

The Register-Guard

Appeared in print: Wednesday, Aug. 27, 2014, page A1

A national college student-rights group is criticizing the University of Oregon for taking disciplinary action against one UO student after she engaged in a sexually suggestive verbal spat with two other UO students.

The Philadelphia-based Foundation for Individual Rights in Education — FIRE — says the UO’s actions are unconstitutional because they violate the student’s free speech rights. The group wants the university to immediately drop the charges against the student and to change how it defines “harassment” in its disciplinary policies.

While not commenting on the specifics of the case, UO spokeswoman Julie Brown said the university believes its student conduct code is “appropriate and doesn’t conflict with free speech laws.”

The incident occured in early June. FIRE claims that a female student, who wishes to remain anonymous, is in trouble for shouting from a dorm room window “I hit it first” at a male and female who were walking by. The phrase, used in some youth circles, suggests the shouter had already had sex with the male student.

The woman of the couple responded with two profanities and the couple then reported the “I hit it first” comment to the dorm’s resident assistant, FIRE said Tuesday.

The shouter apologized to the couple that same evening after being asked to do so by the resident assistant, FIRE says. The shouter claims the comment was a joke and that the matter was resolved after her apology, FIRE said.

However, four days later, on June 13, the student received a “notice of allegations” letter from Nedzer Erilus, a UO assistant residence life coordinator.

The letter, provided by FIRE, states that the student “may have violated” the UO’s student code for harassment, disruption, and disorderly conduct, and the university’s housing rules. It gave her the option of resolving the matter through a hearing with an administrator, or going before a “student conduct and community standards” panel made up of students, university staff and faculty. The standard of proof in student discipline cases is that an incident “more likely than not” occurred.

The letter makes no mention of what specific penalties the student could face. It states that during a hearing with an administrator the three most serious student sanctions — expulsion, suspension, or a negative transcript notation — would not be used, but that wouldn’t be the case if the student chose to go to the larger panel.

According to the UO’s student code, other sanctions include disciplinary probation, reflection papers, community service, or loss of priveleges.Peter Bonilla, the director of FIRE’s individual rights defense program, said Tuesday that the university’s disciplinary actions “clearly violate (the student’s) free speech rights under the First Amendment” of the U.S. Constitution.

The UO’s student code defines harassment, in part, as “unreasonable insults, gestures, or abusive words, in the immediate presence, and directed to, another person that may reasonably cause emotional distress or provoke a violent response.”

That language is “overly broad” and disregards the much higher threshold for limiting free speech that federal and Oregon courts have routinely set in previous cases, Bonilla said.

“By defining harassment as it does, UO’s policy unacceptably prohibits a student’s passionate expression of his or her views on any number of important contemporary issues, so long as a fellow student or administrator deems the expression to be ‘abusive’ or ‘insulting’ under this policy,” a FIRE attorney wrote in a letter to then-UO President Michael Gottfredson.

The charges of disorderly conduct and of violating university housing rules, meanwhile, are “transparent” efforts to “punish the content of (the student’s) speech under the guise of objecting to the manner in which it was conveyed,” FIRE argues.

Bonilla acknowledged Tuesday that the group has heard an account of the spat from only the student facing disciplinary charges, not the other two students or the resident assistant. But he added that “the university has not tried to challenge our story in any way.” FIRE first objected to the charges in a letter it wrote to Gottfredson on Aug. 1.

In addition to responding to specific student rights’ issues, FIRE also lobbies universities to change policies the group believes are unconstitutional.

On June 5, before the incident occured, FIRE had sent a letter to Gottfredson about the UO’s general harassment policy as well as its racial harassment policy — which FIRE believes is too broad as well.

Bonilla says the organization estimates as many 60 percent of public and private universities “maintain (student conduct) policies that we believe violate the First Amendment.” That figure is down from around 75 percent of universities when FIRE started its advocacy work in 2008, he said.

“Universities have never prevailed in court when defending their speech codes,” he said. “Every single time there’s a court challenge, they lose.”

“But a lot of universities may consider (leaving their speech codes in place) worth the risk of a legal challenge,” Bonilla added.

That’s because modern universities put such a strong emphasis on “diversity, and inclusion, and making all students comfortable in their environment,” he said. “Those priorities often come into conflict with free speech.”